Kansas Attorney General Opinion 2014-010

April 11, 2014
ATTORNEY GENERAL OPINION NO. 2014- 10
Mark A. Tremaine, City Attorney
City of Lyons, Kansas
217 East Avenue South
P.O. Box 808
Lyons, KS 67554
Re: 	Cities 	of 	the 	Second 	Class—City 	Officers—Elective 	and 	Appointive
Officers; Council Members, Election, Residence, Vacancy in Offices of
Mayor or Council Member; Service as City Council Member and County
Sheriff
Counties and County Officers—Sheriff—Sheriff; Election, Term, Bond;
Qualifications for Office; Preservation of Peace; Service as County Sheriff
and City Council Member; Incompatibility of Offices
Synopsis: 	The common law doctrine of incompatibility of offices precludes a person
from concurrently serving as a mayor of a city of the second class
operating under the mayor-council form of government and sheriff of the
county in which the city is located. 	Cited herein: 	K.S.A. 14-109; 14-201;
14-207; 14-308; 14-310; 14-423; 14-516; 14-556; 14-560; 14-701a; 14-
1302; 	19-205; 	K.S.A. 	2013 	Supp. 	19-801b; 	K.S.A. 	19-811; 	22-2202;
K.S.A. 2013 Supp. 22-2401; Kan. Const., Art. 12, § 5.
* 	* 	*
Dear Mr. Tremaine:
As city attorney for the city of Lyons, Kansas, you request our opinion regarding
whether a person may concurrently serve as a member of the city council for a city of
the second class operating under the mayor-council form of government and county
sheriff. You request the opinion as one of the current city council members was elected
to the office of county sheriff.

Mark A. Tremaine
Page 2
Cities of the second class may be governed by a council or a commission. If a second-
class city is governed by a board of commissioners, a city commissioner is precluded
from holding “any office of profit under the laws of any state or the United States, or . . .
any county or other city office. . . .”1 In addition, “no person holding any state, county,
township or city office shall be eligible to the office of county commissioner in any
county in this state.”2 By their express provisions, those statutes apply to a member of
a board of commissioners of a city of the second class and a county commissioner. 3
We have not found similar prohibitions in the statutes regarding a member of a council
for a city of the second class or county sheriff. 	We turn, therefore, to the common law
doctrine of incompatibility of offices to determine whether such service is permitted.
The common law doctrine of incompatibility of offices prohibits an individual from
holding more than one public office at the same time when there is an incompatibility
between the offices. 4 “Offices are incompatible when the performance of the duties of
one in some way interferes with the performance of the duties of the other.”5 This is
something more than a physical impossibility to discharge the duties of both offices at
the same time. 6 It is an inconsistency in the functions of the two offices.7 “A person
holding both offices is confronted with the duty of faithfully, impartially and efficiently
discharging 	the 	duties 	of 	these 	offices 	in 	the 	best 	interests 	of 	the 	respective
constituencies,” a duty that may be impossible when the constituencies served by the
public officer have competing interests.8
City Council Member
The council of each city constitutes the governing body of the city. 9 Through its
governing body, a city is empowered to determine its local affairs and government,
subject only to specified legislative enactments. 10 Appointments by the mayor of certain
city officials, including a city marshal-chief of police and police officers, are subject to
1 K.S.A. 14-1302.
2 K.S.A. 19-205 (emphasis added).
3 “When a statute is plain and unambiguous, this court does not speculate as to the legislative intent
behind it and will not read into the statute something not readily found in it.” Cady v. Scholl, 298 Kan.
731, _____, 317 P.3d 90, 96 (2014).
4 Unified School District No. 501 v. Baker, 269 Kan. 239, 249 (2000).
5 Dyche v. Davis, 92 Kan. 971, 977 (1914).
6 Baker, 269 Kan. at 248.
7 Id.
8 Attorney General Opinion No. 83-9.
9 See K.S.A. 14-109. See also Attorney General Opinion No. 86-110; 81-214.
10 Kan. Const., Art. 12, § 5. 	“Since the adoption of the home rule amendment in 1960, the Kansas
legislature has repealed a number of statutory provisions describing in some detail the powers of
governing bodies of cities of the second class, precisely because a statutory enumeration of those
powers was no longer necessary.” Attorney General Opinion 80-166, quoting Attorney General Opinion
No. 78-336.

Mark A. Tremaine
Page 3
consent of the council, 11 as are any of the mayor’s grants of reprieve and pardon for
offenses arising under city ordinances. 12 The council by state statute also possesses
the authority to divide the city into wards for election purposes,13 appoint an elector to fill
a vacancy on the council, 14 and provide for municipal improvements.15
County Sheriff
A person is eligible for nomination, election or appointment to the office of sheriff unless
the 	person 	“has 	been 	convicted 	of 	or 	pleaded 	guilty 	or 	entered 	a 	plea 	of 	nolo
contendere . . . to any violation of . . . city ordinances relating to gambling, liquor or
narcotics.”16
It shall be the duty of the sheriff and undersheriffs and deputies to keep
and preserve the peace in their respective counties, and to quiet and
suppress all affrays, riots and unlawful assemblies and insurrections, for
which purpose, and for the service of process in civil or criminal cases,
and in apprehending or securing any person for felony or breach of the
peace, they, and every coroner, may call to their aid such person or
persons of their county as they may deem necessary.17
In addition, a sheriff is a law enforcement officer who may exercise law enforcement
duties anywhere in the county, 18 including within the municipal limits of a city.19
[I]f the sheriff believes the [city] police officers are failing to enforce the
laws 	or 	properly 	investigate 	crimes, 	through 	neglect 	or 	inability 	to
adequately perform their duties, the sheriff has not only the right but also
the duty to act independently of such officers in the enforcement of state
laws and the investigation of crime. 20
11 K.S.A. 14-201. 	“Absent confirmation by the council, the appointee does not become a public officer of
the city.” Attorney General Opinion No. 83-86.
12 K.S.A. 14-310.
13 K.S.A. 14-207.
14 K.S.A. 14-308.
15 See, e.g., K.S.A. 14-423 (streets and alleys); 14-516 (sewers); 14-556 (highways); 14-560 (streets); 14-
701a (watercourses).
16 K.S.A. 2013 Supp. 19-801b(a).
17 K.S.A. 19-813.
18 K.S.A. 2013 Supp. 22-2401a(1). See also K.S.A. 22-2202(13) (“‘Law enforcement officer’ means any
person who by virtue of office or public employment is vested by law with a duty to maintain public order
or to make arrests for violation of the laws of the state of Kansas or ordinances of any municipality thereof
or with a duty to maintain or assert custody or supervision over persons accused or convicted of crime
. . . .”).
19 Attorney General Opinion No. 82-274.
20 Id.

Mark A. Tremaine
Page 4
“The sheriff of the county by himself or deputy shall keep the jail, and shall be
responsible for the manner in which the same is kept,” 21 and “shall receive all prisoners
committed to the sheriff's . . . custody by the authority of the United States or by the
authority of any city located in such county. . . .”22 “The governing body of any city
committing 	prisoners 	to 	the 	county 	jail 	shall 	provide 	for 	the 	payment 	of 	such
compensation upon receipt of a statement from the sheriff of such county as to the
amount due therefor from such city.”23 Such compensation “may include expenses that
relate to personnel, administration, facility operation and maintenance as well as direct
prisoner expenses.”24
After reviewing the respective roles of a council member of a city of the second class
operating under the mayor-council form of government and a county sheriff, we believe
the performance of the duties of one of those offices interferes with the performance of
the duties of the other office to such a degree that the common law doctrine of
incompatibility of offices precludes a person from concurrently serving in both offices.
The 	decision 	of 	the 	council 	member/sheriff 	whether 	to 	consent 	to 	the 	mayor’s
appointment of a highly qualified individual to city marshal-chief of police or police
officer may be compromised if that individual has also applied for a position with the
county sheriff’s department. 	Further, the decision of the council member/sheriff to
exercise law enforcement authority within the municipal limits of a city may be affected
by whether the officer acts as a council member supporting the efforts of the city’s
police department or a sheriff desiring to provide consistent law enforcement throughout
the county. 	Lastly, a city council member would likely prefer that charges for housing
and keeping prisoners committed to the county jail not include expenses related to
personnel, administration, facility operation and maintenance while a county sheriff may
likely prefer to recoup all potential costs of housing and keeping the prisoners. 	Given
the competing interests of the two offices, one person is precluded from concurrently
serving in both positions.
Sincerely,
Derek Schmidt
Attorney General
Richard D. Smith
Assistant Attorney General
DS:AA:RDS:sb
21 K.S.A. 19-811.
22 K.S.A. 19-1903. See also K.S.A. 19-811; 19-1930(a).
23 K.S.A. 19-1930(a).
24 Attorney General Opinion No. 2001-42.